Roe v. Wade has protected abortion rights for five decades, but appeared to be nearing its end even before a draft majority decision overturning the landmark decision leaked Monday evening.
That decision, written by Justice Samuel Alito, concludes that “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” If Alito’s jaw-dropping assault on reproductive freedom is indeed this court’s final word, bodily autonomy will be at stake nationwide in this fall’s midterms.
Yet what Alito certainly understands is that the embrace of partisan gerrymandering and a decade-long beatdown on voting rights by both the Republican Party and their robed extensions on the Supreme Court has severed the connection between elections and the will of the people.
Alito offers a promise of a game his side has already rigged. In state after state, the outcome is already clear.
After all, polls haven’t budged for nearly two decades: Almost twice as many Americans want to see Roe upheld than overturned. Contrary to overwhelming public opinion, however, GOP-controlled state legislatures have rushed to pass aggressive new restrictions modeled after Texas’s six-week ban which turns neighbors into bounty hunters or the 15-week prohibition adopted by Mississippi.
This radical legislation isn’t popular even in the red states where it is becoming law.
In Florida, Governor Ron DeSantis signed a GOP bill in March that ends access to abortion after 15 weeks, even in the case of rape, incest, or human trafficking. A February poll conducted by the University of North Florida found that 57 percent of voters either disapproved or strongly disapproved — and that number increased by an additional five percentage points when participants were told that the ban lacked those exceptions.
In Texas, according to a University of Texas/Texas Tribune survey, 57 percent of voters oppose the state’s new law that deputizes citizens to sue individuals they think may have aided someone in obtaining an abortion. In Oklahoma, which adopted a similar measure as Texas this spring, a Pew Center poll found that 51 percent believe abortion should be legal in all or most cases, compared to 45 percent who would make it illegal in all/most cases.
The usual result for being on the wrong side of voters in a democracy is losing an election. But thanks to extreme gerrymandering, those rules no longer apply in many states. Politicians pick their voters, not the other way around. And the politicians know it.
Now, according to a Washington Post report, conservatives are preparing draconian new national restrictions — that would impose the same measures in blue states — should Republicans control the White House and Congress after the 2024 elections. Yet according to a Data for Progress poll, there isn’t a single state nationwide where more than 30 percent of voters support such a radical provision.
Why would so many lawmakers boldly enact strict limits on reproductive freedom that large majorities oppose? According to the Washington Post, it’s because Republicans have paid no political price for a stance that’s far outside the mainstream even in their own states. Ruthless redistricting robs voters of choice and turns unrepresentative policies into law, even in purple Wisconsin, North Carolina, Pennsylvania, Ohio, and Michigan.
When lawmakers know they can’t lose, they can fearlessly push divisive legislation voters dislike. In state legislatures nationwide, that’s been the case on voting rights, ending pandemic protections, book bans, new restrictions on teaching American history, expansion of “concealed carry” laws, and a host of other issues adopted by gerrymandered GOP majorities, public opinion be damned.
Reproductive rights, however, might be the issue where GOP lawmakers have pushed for the most extreme change, regardless of voter will. In Florida, for example, new abortion restrictions voters opposed nearly two-to-one actually cleared the state house by a 78-39 party-line vote. DeSantis won in 2018 by fewer than 33,000 votes, and Donald Trump carried the state with just over 51 percent. But Republicans hold 65 percent of the state house — and only six of 120 districts were within 5 percentage points in 2020.
In Ohio, voters in 2018 handed GOP state legislative candidates 50.3 percent of the vote, but gerrymandered maps awarded Republican politicians 63 percent of the seats; an equally divided electorate produced only six competitive races among 99 seats. Emboldened, entrenched lawmakers passed a bill that bans abortion as early as five weeks into a pregnancy, despite polls showing more Ohio citizens opposed the measure than backed it.
It was a similar story in Georgia, where an unsupported heartbeat bill passed in 2019. There might not be a more closely divided state in the nation. But that year, thanks to wildly gerrymandered maps, only 112 of the state’s 180 house districts and 33 of 56 state senate races had competition. Voters literally had no choice at all.
So when Alito’s draft opinion talks about returning abortion rights policy to the “democratic process” and suggests that critics of his legislating from the bench simply vote, lobby their representatives, or run for office themselves, he’s either being deliberately disingenuous or intentionally obtuse.
The answer isn’t more voting in districts where the outcome is preordained. It’s dramatically reforming and rebalancing the court and longstanding institutions that have kneecapped majority rule in Congress and the states, turning so-called laboratories of democracy into laboratories of autocracy — and rendering the will of the people meaningless.
David Daley is the author of “Ratf**ked: Why Your Vote Doesn’t Count” and “Unrigged: How Americans Are Battling Back to Save Democracy.”